The provisions of the Act contemplate filing of an application
under Section 12 to initiate the proceedings before the concerned Magistrate. After hearing both sides and after taking into account the material on record, the Magistrate may pass an appropriate order under Section 12 of the Act. It is only the breach of such order which constitutes an offence as is clear from
Section 31 of the Act. Thus, if there be any offence committed in terms of the provisions of the Act, the limitation prescribed under Section 468 of the Code will apply from the date of commission of such offence. By the time an application is preferred under Section 12 of the Act, there is no offence committed in terms of the provisions of the Act and as such there would never be a starting point for limitation from the date of application under Section 12 of the Act. Such a starting point for limitation would arise only and only after there is a breach of an order passed under Section 12 of the Act.
19. The special features with regard to an application under Section 12 of the Act were noticed by a Single Judge of the High Court in Dr. P. Padmanathan & Ors.2 as under:
“19. In the first instance, it is, therefore, necessary to examine the
areas where the D.V. Act or the D.V. Rules have specifically set out the procedure thereby excluding the operation of Cr.P.C. as
contemplated under Section 28(1) of the Act. This takes us to the
D.V. Rules. At the outset, it may be noticed that a “complaint” as
contemplated under the D.V. Act and the D.V. Rules is not the same as a “complaint” under Cr.P.C. A complaint under Rule 2(b) of the D.V. Rules is defined as an allegation made orally or in writing by any person to a Protection Officer. On the other hand, a complaint, under Section 2(d) of the Cr.P.C. is any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown has committed an offence. However, the Magistrate dealing with an application under Section 12 of the Act is not called upon to take action for the commission of an offence. Hence, what is contemplated is not a complaint but an application to a Magistrate as set out in Rule 6(1) of the D.V. Rules. A complaint under the D.V. Rules is made only to a Protection Officer as contemplated under Rule 4(1) of the D.V. Rules.
20. Rule 6(1) sets out that an application under Section 12 of the
Act shall be as per Form II appended to the Act. Thus, an
application under Section 12 not being a complaint as defined
under Section 2(d) of the Cr.P.C, the procedure for cognizance set out under Section 190(1)(a) of the Code followed by the procedure set out in Chapter XV of the Code for taking cognizance will have no application to a proceeding under the D.V. Act. To reiterate, Section 190(1)(a) of the Code and the procedure set out in the subsequent Chapter XV of the Code will apply only in cases of complaints, under Section 2(d) of Cr.P.C, given to a Magistrate and not to an application under Section 12 of the Act.”
20. It is thus clear that the High Court wrongly equated filing of an application under Section 12 of the Act to lodging of a complaint or initiation of prosecution. In our considered view, the High Court was in error in observing that the application under Section 12 of the Act ought to have been filed within a period of one year of the alleged acts of domestic violence.
21. It is, however, true that as noted by the Protection Officer in his Domestic Inspection Report dated 2.08.2018, there appears to be a period of almost 10 years after 16.09.2008, when nothing was alleged by the appellant against the husband. But that is a matter which will certainly be considered by the Magistrate after response is received from the husband and the rival contentions are considered. That is an exercise which has to be undertaken
by the Magistrate after considering all the factual aspects presented before him, including whether the allegations constitute a continuing wrong.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.627 OF 2022
KAMATCHI Vs LAKSHMI NARAYANAN
Author: Uday Umesh Lalit, J.
Dated: April 13, 2022.
1. Leave granted.
2. This appeal challenges the final judgment and order dated 16.03.2020
passed by the High Court1 in Crl. O.P. No. 28924 of 2018.
3. The present proceedings arise out of an application preferred by the
appellant under Section 12 of the Protection of Women from Domestic
Violence Act, 2005 (hereinafter referred to as ‘the Act’), which was
numbered as D.V.C. No.21 of 2018 in the Court of Judicial Magistrate,
1 High Court of Judicature at Madras
Ambattur, Chennai. The application was filed seeking appropriate protection
in terms of Sections 17 and 18 of the Act and was preferred against the
respondent-husband as well as the father-in-law and sister-in-law of the
appellant. The Protection Officer vide his Domestic Inspection Report dated
21.08.2018 tabulated the incidents of domestic violence as under:-
“4. Incidents of domestic violence:-
Sl.No. Date,
Place and
Time of
violence
Persons
who caused
domestic
violence
Types of
violence
Physical
violence
Remarks
1 25.08.2007
Husband’s
Home
Father-inlaw
Mother-inlaw
Sister-inlaw
They came to our house
for marriage invitation
and demanded jewels.
They also insulted my
father saying normally
all are giving 20
severing jewels to auto
driver.
2 08.09.2007 Father-inlaw
Sister-inlaw
My father-in-law and
sister-in-law stated that
my husband got bride
from rich family but
don’t know what he saw
in me and choose me.
3 09.09.2007 Sister-inlaw
Rajeshwari
On that day my husband
unnecessarily fought
with me. She
disrespectfully spoke
about me and my family
members as what dowry
was given by your
family, what jewel you
brought and came, like a
beggar family.
3
4 14.09.2007
Husband
House
Father-inlaw
Sister-inlaw
All were fighting with
my Husband in front of
me and told him not to
take me to London.
They spoke about me in
disrespectful manner.
5 15.09.2007 Father-inlaw
Sister-inlaw
Tortured me stating that
you should not go
London along with your
husband and they
disconnected electricity
connection in my room.
6 19.09.2007 Father-inlaw
Mother-inlaw
Sister-inlaw
All person jointly spoke
disrespectfully with me
about my parents that
they have not given car
and other household
things.
7 20.01.2008 Husband I was pregnant at that
time, based on the
instigation of them, my
husband compelled me
to abort the cyst. But I
did not accept, so he
brought me to India from
London, thereafter he
left me and went to
London.
8 16.09.2008 Father-inlaw
Mother-inlaw
Sister-inlaw
They did not consider
me as a girl, who had
undergone surgery, and
they entered my room
and tried to attack me
stating that it was not
proper marriage, jewel
and household thing and
this is not our heir.
9 20.04.2018 Sister-inlaw
Rajeshwary
When I went to my
husband house with the
High Court order of
restitution, my sister-inlaw
Rajeshwary
obstructed me from
entering the house and
4
she pushed me and my
child out of the house
and told me to die
somewhere.
II. SEXUAL VIOLENCE
Please tick mark the column applicable.
The basic allegations as culled out from the Report of the Protection
Officer were:-
“My name Kamakshi. Marriage solemnized in between me and
my husband on 07.09.2007. The dowry, which was given to my
marriage, 60 sovereign gold, 4 ½ kg silver, Rs.50,000/- and other
household things placed at my Husband’s House. My parents
spent Rs. 15 lakhs for marriage. Before the marriage, my husband
family members came to our home for give invitation and gave
mental stress and stated that jewel and dowry are not enough. My
father borrowed loan and conducted marriage with intention of
marriage should be go in smooth manner. After next day of
marriage, they spoke in disrespectful manner towards me and my
parents stating that no sufficient jewel and household things were
given. They did many tricks for I would not go with my husband
to London and they tortured me. I gave birth to a male child on
06.09.2008. My husband family members came for Punyathanam
function and spoke disrespectful as this is not our heir and refused
to accept the child. I preferred many cases for to living together
with my husband. I went to my husband home with the High
Court order. Rajeshwari has not allowed me and my child and
spoke disrespectful manner and drove us out and told me to go and
die somewhere.”
4. Soon thereafter, father-in-law and sister-in-law of the appellant filed
Crl.O.P.No.27097 of 2018 under Section 482 of the Code of Criminal
Procedure, 1973 (‘the Code’, for short) before the High Court seeking
quashing of the proceedings under the Act. Crl.O.P. No.28924 of 2018 was
filed by the respondent-husband seeking identical relief under Section 482 of
5
the Code. The main grounds taken by the respondent in said Original
Petition were: -
“E. It is submitted that the Petitioners are forced to face the
ordeal of trial on no material or even probabilities or a real
instance, thus, the impugned proceedings in D.V. No. 21 of 2018
against the Petitioner is illegal, unwarranted and it is nothing but
an abuse of process of law and therefore it is liable to be quashed.
F. The Petitioner submits that a matrimonial dispute is sought
to be given a criminal colour at the instance of the Respondent.
The allegations against the petitioner is unsustainable in law and
allowing the proceedings further would serve no purpose so far as
the Petitioner is concerned. Therefore, on that ground, the
proceedings against the Petitioner/Respondent in D.V. No.21 of
2018 on the file of the learned Judicial Magistrate, Ambattur, is
liable to be quashed.”
5. Both the Original Petitions came up before the High Court on
16.03.2020.
A. The Petition filed by the father-in-law and the sister-in-law was
allowed and the proceedings against them were quashed. It was observed by
the High Court :-
“5. In view of the above, this Court is inclined to quash the
proceedings in D.V. No.21 of 2018, on the file of the Judicial
Magistrate, Ambattur, insofar as the petitioners herein are
concerned, on condition that, they shall ensure that the A1/husband
of the respondent shall deposit a sum of Rs.5,000(Rupees Five
Thousand only) before 5th of every English Calendar month to the
credit of D.V. No.21 of 2018, on the file of the Judicial Magistrate,
Ambattur, as ad-interim maintenance, without prejudice to both the
parties, failing which this order shall stand automatically cancelled.
On such deposit being made, the respondent is entitled to withdraw
the same.
6. Insofar as A1/husband of the respondent is concerned, since
the impugned proceedings in D.V.No.21 of 2018 is pending from
the year 2018 onwards, it would be appropriate to direct the Trial
Court to complete the trial within a period of six months from the
date of receipt of copy of this order. A1/husband of the respondent
is directed to appear before the Trial Court on the next hearing
date, failing which, the respondent is at liberty to approach this
Court.”
B. However, with regard to the petition filed by the respondent, the High
Court took the view that the application ought to have been filed within one
year of the incident and since the appellant had left the matrimonial home in
the year 2008, the application was abuse of process of the court. The
relevant observations made were :-
“5. The only point for consideration is limitation. In this
regard, it is relevant to rely upon the judgment in the case of
Inderjit Singh Grewal vs. State of Punjab & Anr., reported in
2012 Crl.L.J. 309. Sections 28 and 32 of the Protection of Women
from Domestic Violence Act, 2005 r/w Rule 15(6) of the Protection
of Women from Domestic Violence Rules 2006, makes the
provisions of Criminal Procedure Code applicable. Therefore, the
respondent ought to have filed the complaint within a period of one
year from the date of the incident.
6. In the case on hand, the respondent left the matrimonial
home in the year 2008 itself, thereafter, there are so many
proceedings pending against the petitioner and the respondent
herein, in respect to their family disputes. The petitioner was
directed to pay a sum of Rs.30,000/- to the respondent herein and a
sum of Rs.15,000/- to the minor son as maintenance in MC No.261
of 2013 and it is under challenge before this Court in
Crl.R.C.No.567 of 2018 and the petitioner herein has been
continuously paying the maintenance to the respondent.
7. Therefore, on the ground of limitation, the entire complaint
is nothing but a clear abuse of process of Court and it cannot be
sustained as against the petitioner.”
6. In these circumstances, the instant appeal is preferred by the appellant
against the order allowing the Petition filed by the respondent.
7
7. We have heard Mr. Sharath Chandran, learned Advocate in support of
the appeal and Mr. Siddhartha Dave, learned Senior Advocate for the
respondent.
8. Mr. Sharath Chandran, learned Advocate submits: -
a) The limitation prescribed under Section 468 of the Code
postulates inter alia that no cognizance be taken by the Court more
than a year after the commission of offence. Thus, the limitation is to
be reckoned from the date of commission of offence.
b) Section 12 of the Act speaks of filing of an application seeking
one or more reliefs under the Act, whereafter the relevant material is
considered by the Magistrate including any Domestic Incident Report.
The matter is then heard in terms of Sub-Section (4) and finally an
order may be made on the application.
c) As laid down in Section 31 of the Act, any breach of an order
passed inter alia under Section 12 of the Act is punishable with
imprisonment of either description for a term which may extend to
one year, or with fine, or with both. Thus, the offence under Section
31 of the Act will be said to have been committed only after the
breach of an order passed under Section 12 of the Act, occurs.
d) There is no limitation under the Code or under the provisions of
the Act for filing of an application and as such, the High Court was
not right in observing that the proceedings were barred by limitation.
e) The Judgments relied upon by the High Court were completely
distinguishable. Reliance was placed on the decision of the Single
Judge of the High Court in Dr. P. Padmanathan & Ors. v. Tmt. V.
Monica & Anr.2.
9. Mr. Siddhartha Dave, learned Senior Advocate for the respondent
submits: -
i) The tabular chart prepared by the Protection Officer in his
Report indicates that after 16.09.2008 for almost 10 years nothing was
alleged against the respondent or the father-in-law or sister-in-law.
ii) The parties had been living separately for last several years and
the application was nothing but a desperate attempt to file something
against the respondent in a court of law; and was clearly an abuse of
process of court.
2 2021 SCC Online Mad 8731.
9
iii) Going by the dictum of this Court in Sarah Mathew v.
Institute of Cardio Vascular Diseases3, the starting point for
reckoning the period of limitation ought to be from the date of
application and as such, the High Court was justified in observing that the action was barred by time.
In the written submissions, it is also submitted that: -
“This Hon’ble Court in Adalat Prasad v. Rooplal Jindal4
held that if a Magistrate takes cognizance of an offence, issues
process without there being any allegation against the accused, or
any material implicating the accused, or in contravention of
provisions of Sections 200 and 202, the order of the Magistrate
may be vitiated. However, the relief an aggrieved accused can
obtain at that stage is not by invoking Section 203 of the Code,
because the Code does not contemplate a review of an order.
Hence in the absence of any review power, or inherent power with
the subordinate criminal courts, the remedy lies in invoking
Section 482 of the Code.”
10. Before we consider the rival submissions, the relevant provisions,
namely Sections 12, 28, 31 and 32 of the Act may be extracted: -
“12. Application to Magistrate. —
(1) An aggrieved person or a Protection Officer or any other person
on behalf of the aggrieved person may present an application to the
Magistrate seeking one or more reliefs under this Act:
Provided that before passing any order on such application, the
Magistrate shall take into consideration any domestic incident
report received by him from the Protection Officer or the service
provider.
3 (2014) 2 SCC 62.
4 (2004) 7 SCC 338.
10
(2) The relief sought for under sub-section (1) may include a relief
for issuance of an order for payment of compensation or damages
without prejudice to the right of such person to institute a suit for
compensation or damages for the injuries caused by the acts of
domestic violence committed by the respondent:
Provided that where a decree for any amount as compensation or
damages has been passed by any court in favour of the aggrieved
person, the amount, if any, paid or payable in pursuance of the order
made by the Magistrate under this Act shall be set off against the
amount payable under such decree and the decree shall,
notwithstanding anything contained in the Code of Civil Procedure,
1908 (5 of 1908), or any other law for the time being in force, be
executable for the balance amount, if any, left after such set off.
(3) Every application under sub-section (1) shall be in such form
and contain such particulars as may be prescribed or as nearly as
possible thereto.
(4) The Magistrate shall fix the first date of hearing, which shall not
ordinarily be beyond three days from the date of receipt of the
application by the court.
(5) The Magistrate shall endeavor to dispose of every application
made under sub-section (1) within a period of sixty days from the
date of its first hearing.
28. Procedure. —
(1) Save as otherwise provided in this Act, all proceedings under
sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31
shall be governed by the provisions of the Code of Criminal
Procedure, 1973 (2 of 1974).
(2) Nothing in sub-section (1) shall prevent the court from laying
down its own procedure for disposal of an application under section
12 or under sub-section (2) of section 23.
31. Penalty for breach of protection order by respondent. —
(1) A breach of protection order, or of an interim protection order,
by the respondent shall be an offence under this Act and shall be
11
punishable with imprisonment of either description for a term which
may extend to one year, or with fine which may extend to twenty
thousand rupees, or with both.
(2) The offence under sub-section (1) shall as far as practicable be
tried by the Magistrate who had passed the order, the breach of
which has been alleged to have been caused by the accused.
(3) While framing charges under sub-section (1), the Magistrates
may also frame charges under section 498A of the Indian Penal
Code (45 of 1860) or any other provision of that Code or the Dowry
Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts
disclose the commission of an offence under those provisions.
32. Cognizance and proof. —
(1) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), the offence under sub-section (1) of
section 31 shall be cognizable and non-bailable.
(2) Upon the sole testimony of the aggrieved person, the court may
conclude that an offence under sub-section (1) of section 31 has
been committed by the accused.”
11. Similarly, Section 468 of the Code is also set out for facility: -
“468. Bar to taking cognizance after lapse of the period of
limitation: -
(1) Except as otherwise provided elsewhere in this Code, no Court
shall take cognizance of an offence of the category specified in
sub- section (2), after the expiry of the period of limitation.
(2) The period of limitation shall be-
(a) six months, if the offence is punishable with fine only
(b) one year, if the offence is punishable with imprisonment
for a term not exceeding one year;
(c) three years, if the offence is punishable with imprisonment
for term exceeding one year but not exceeding three years.
12
(3) For the purposes of this section, the period of limitation in
relation to offences which may be tried together, shall be
determined with reference to the offence which is punishable with
the more severe punishment or, as the case may be, the most severe
punishment.”
12. In terms of Section 468 of the Code, the cognizance of an offence of
the categories specified in Sub Section 2 can not to be taken after the expiry
of the period specified therein.
In following cases, the complaints alleging commission of an offence
were filed well in time so that cognizance could have been taken within the
prescribed period, but the matters were considered by the Magistrate after
the expiry of the prescribed period, and as such the cognizance in each of the
cases was taken after the expiry of the period prescribed.
(A) A bench of three Judges of this Court in Krishna Pillai v. T.A.
Rajendran & Anr.5, while dealing with Section 9 of the Child Marriage
Restraint Act, 1929, which mandates that no Court should take cognizance
of an offence after the expiry of one year from the day when the offence was
allegedly committed, observed: -
“3. It is not disputed that cognizance has been taken by the court
more than a year after the offence was committed. Counsel for the
respondents has stated that since the complaint had been filed
within a year from the commission of the offence it must be taken
5 1990 (Supp.) SCC 121.
that the court has taken cognizance on the date when the complaint
was filed. In that view of the matter there would be no limitation.
4. Taking cognizance has assumed a special meaning in our
criminal jurisprudence. We may refer to the view taken by a five
Judge bench of this Court in A.R. Antulay v. Ramdas Sriniwas
Nayak6. At p. 530 (para 31) of the reports this Court indicated:
“When a private complaint is filed, the court has to examine the
complainant on oath save in the cases set out in the proviso to
Section 200 Cr.P.C. After examining the complainant on oath and
examining the witnesses present, if any, meaning thereby that the
witnesses not present need not be examined, it would be open to
the court to judicially determine whether a case is made out for
issuing process. When it is said that court issued process, it means
the court has taken cognizance of the offence and has decided to
initiate the proceedings and a visible manifestation of taking
cognizance process is issued which means that the accused is
called upon to appear before the court.””
(B) In Bharat Damodar Kale & Anr. v. State of Andhra Pradesh7 a
complaint was lodged within one year but the cognizance was taken after the
period of one year was over. The complainant had approached within time
and the delay was because of an act of court, over which the prosecuting
agency or the complainant had no control. A bench of two Judges of this
Court observed that “Limitation for taking cognizance of certain offences”
must be reckoned from the day when the complaint was filed or proceedings
were initiated. The discussion on the point was: -
“10. On facts of this case and based on the arguments advanced
before us, we consider it appropriate to decide the question
whether the provisions of Chapter XXXVI of the Code apply to the
delay in instituting the prosecution or to the delay in taking
cognizance. As noted above, according to the learned counsel for
the appellants, the limitation prescribed under the above Chapter
applies to taking of cognizance by the court concerned, therefore
6 (1984) 2 SCC 500 : 1984 SCC (Cri) 277
7 (2003) 8 SCC 559.
even if a complaint is filed within the period of limitation
mentioned in the said Chapter of the Code, if the cognizance is not
taken within the period of limitation the same gets barred by
limitation. This argument seems to be inspired by the chapter
heading of Chapter XXXVI of the Code which reads thus:
“Limitation for taking cognizance of certain offences”. It is
primarily based on the above language of the heading of the
Chapter, the argument is addressed on behalf of the appellants that
the limitation prescribed by the said Chapter applies to taking of
cognizance and not filing of complaint or initiation of the
prosecution. We cannot accept such argument because a
cumulative reading of various provisions of the said Chapter
clearly indicates that the limitation prescribed therein is only for
the filing of the complaint or initiation of the prosecution and not
for taking cognizance. It of course prohibits the court from taking
cognizance of an offence where the complaint is filed before the
court after the expiry of the period mentioned in the said Chapter.
This is clear from Section 469 of the Code found in the said
Chapter which specifically says that the period of limitation in
relation to an offence shall commence either from the date of the
offence or from the date when the offence is detected. Section 470
indicates that while computing the period of limitation, time taken
during which the case was being diligently prosecuted in another
court or in appeal or in revision against the offender should be
excluded. The said section also provides in the Explanation that in
computing the time required for obtaining the consent or sanction
of the Government or any other authority should be excluded.
Similarly, the period during which the court was closed will also
have to be excluded. All these provisions indicate that the court
taking cognizance can take cognizance of an offence the complaint
of which is filed before it within the period of limitation prescribed
and if need be, after excluding such time which is legally
excludable. This in our opinion clearly indicates that the limitation
prescribed is not for taking cognizance within the period of
limitation, but for taking cognizance of an offence in regard to
which a complaint is filed or prosecution is initiated beyond the
period of limitation prescribed under the Code. Apart from the
statutory indication of this view of ours, we find support for this
view from the fact that taking of cognizance is an act of the court
over which the prosecuting agency or the complainant has no
control. Therefore, a complaint filed within the period of limitation
under the Code cannot be made infructuous by an act of court. The
legal phrase “actus curiae neminem gravabit” which means an act
of the court shall prejudice no man, or by a delay on the part of the
court neither party should suffer, also supports the view that the
legislature could not have intended to put a period of limitation on
15
the act of the court of taking cognizance of an offence so as to
defeat the case of the complainant. This view of ours is also in
conformity with the earlier decision of this Court in the case
of Rashmi Kumar v. Mahesh Kumar Bhada8 .
11. If this interpretation of Chapter XXXVI of the Code is to
be applied to the facts of the case, then we notice that the offence
was detected on 5-3-1999 and the complaint was filed before the
court on 3-3-2000 which was well within the period of limitation,
therefore, the fact that the court took cognizance of the offence
only on 25-3-2000, about 25 days after it was filed, would not
make the complaint barred by limitation.
12. In view of our above finding, we do not think it is necessary for
us to go to the next question argued on behalf of the appellants that
the court below was in error in invoking Section 473 of the Code
for extending the period of limitation nor is it necessary for us to
discuss the case of State of Himachal Pradesh v. Tara Dutt &
Anr.9 relied on by the appellants.”
(Emphasis added)
(C) In Japani Sahoo v. Chandra Sekhar Mohanty10 the offence was
allegedly committed on 2.2.1996 and the complaint was filed on 5.2.1996
but the cognizance of the offence was taken on 8.8.1997 when the period of
limitation under Section 468 of the Code for the concerned offence was only
six months. After considering the relevant cases on the point including
Bharat Damodar Kale7, a bench of two Judges of this Court observed:
“48. So far as the complainant is concerned, as soon as he files a
complaint in a competent court of law, he has done everything
which is required to be done by him at that stage. Thereafter, it is
for the Magistrate to consider the matter, to apply his mind and to
take an appropriate decision of taking cognizance, issuing process
8 (1997) 2 SCC 397 : 1997 SCC (Cri) 415
9 (2000) 1 SCC 230 : 2000 SCC (Cri) 125
10 (2007) 7 SCC 394.
16
or any other action which the law contemplates. The complainant
has no control over those proceedings.
49. Because of several reasons (some of them have been referred to
in the aforesaid decisions, which are merely illustrative cases and
not exhaustive in nature), it may not be possible for the court or the
Magistrate to issue process or take cognizance. But a complainant
cannot be penalized for such delay on the part of the court nor can
he be non-suited because of failure or omission by the Magistrate
in taking appropriate action under the Code. No criminal
proceeding can be abruptly terminated when a complainant
approaches the court well within the time prescribed by law. In
such cases, the doctrine ‘actus curiae neminem gravabit’ (an act of
court shall prejudice none) would indeed apply. (vide Alexander
Rodger v. Comptoir D' Escompte.11 One of the first and highest
duties of all courts is to take care that an act of court does no harm
to suitors.
50. The Code imposes an obligation on the aggrieved party to take
recourse to appropriate forum within the period provided by law
and once he takes such action, it would be wholly unreasonable
and inequitable if he is told that his grievance would not be
ventilated as the court had not taken an action within the period of
limitation. Such interpretation of law, instead of promoting justice
would lead to perpetuate injustice and defeat the primary object of
procedural law.
51. The matter can be looked at from different angle also. Once it
is accepted (and there is no dispute about it) that it is not within the
domain of the complainant or prosecuting agency to take
cognizance of an offence or to issue process and the only thing the
former can do is to file a complaint or initiate proceedings in
accordance with law, if that action of initiation of proceedings has
been taken within the period of limitation, the complainant is not
responsible for any delay on the part of the court or Magistrate in
issuing process or taking cognizance of an offence. Now, if he is
sought to be penalized because of the omission, default or inaction
on the part of the court or Magistrate, the provision of law may
have to be tested on the touchstone of Article 14 of the
Constitution. It can possibly be urged that such a provision is
totally arbitrary, irrational and unreasonable. It is settled law that a
court of law would interpret a provision which would help
sustaining the validity of law by applying the doctrine of
reasonable construction rather than making it vulnerable and
unconstitutional by adopting rule of litera legis. Connecting the
provision of limitation in Section 468 of the Code with issuing of
11 (1871) LR 3 PC 465 : 17 ER 120
17
process or taking of cognizance by the court may make it
unsustainable and ultra vires Article 14 of the Constitution.
52. In view of the above, we hold that for the purpose of
computing the period of limitation, the relevant date must be
considered as the date of filing of complaint or initiating criminal
proceedings and not the date of taking cognizance by a Magistrate
or issuance of process by a court. We, therefore, overrule all
decisions in which it has been held that the crucial date for
computing the period of limitation is taking of cognizance by the
Magistrate/court and not of filing of complaint or initiation of
criminal proceedings.
53. In the instant case, the complaint was filed within a period of
three days from the date of alleged offence. The complaint,
therefore, must be held to be filed within the period of limitation
even though cognizance was taken by the learned Magistrate after
a period of one year. Since the criminal proceedings have been
quashed by the High Court, the order deserves to be set aside and
is accordingly set aside by directing the Magistrate to proceed with
the case and pass an appropriate order in accordance with law, as
expeditiously as possible.”
(Emphasis added)
(D) In Sarah Mathew v. Institute of Cardio Vascular Diseases etc. and
others12, a bench of two Judges of this Court noted the facts of the case as
under: -
“1. Mr. K. Swami, learned counsel appearing for the appellant,
submitted that the High Court [Institute of Cardio Vascular
Diseases v. Sarah Mathew, Criminal OP No. 12001 of 1997,
decided on 17-7-2002 (Mad)] was clearly wrong in holding that the
proceeding against the respondents was barred by limitation, as
provided under Section 468(2)(c) of the Code of Criminal
Procedure, 1973, because the order issuing summons against the
accused was passed by the Magistrate after three years from the
date of the occurrence, even though the complaint was admittedly
filed within the period of limitation. In support of the contention,
he relies upon a two-Judge Bench decision of this Court in Bharat
Damodar Kale7 in which, on an examination of the provisions
12 (2014) 2 SCC 102
18
contained in Chapter XXXVI of the Code of Criminal Procedure, it
was held that the Court can take cognizance of an offence, the
complaint of which is filed before it, within the period of limitation
prescribed and, if need be, after excluding such time which is
legally excludable. It further held that the limitation prescribed is
not for taking cognizance within the period of limitation, but for
taking cognizance of an offence in regard to which a complaint is
filed or prosecution is initiated beyond the period of limitation
prescribed under the Code of Criminal Procedure. The decision
in Bharat Damodar Kale7 is followed in another two-Judge Bench
decision of this Court in Japani Sahoo v. Chandra Sekhar
Mohanty10. In para 52 of the decision in Japani Sahoo10, it was
reiterated that for the purpose of computing the period of
limitation, the relevant date must be considered as the date of filing
of complaint or initiating criminal proceedings and not the date of
taking cognizance by a Magistrate or issuance of process by a
court.”
Thereafter, noticing the conflict in the view taken in Bharat Damodar
Kale7 and Japani Sahoo10 as against that in Krishna Pillai5, the matter was
referred to a three Judge bench, which in turn referred13 the matter to a larger
Bench. While doing so, the three-Judge Bench observed:
“……The three-Judge Bench in Krishna Pillai5 has not adverted to
diverse aspects including the aspects that inaction on the part of the
court by not taking cognizance swiftly or within limitation,
although the complaint has been filed within time or the
prosecution has been instituted within time, should not act
prejudicial to the prosecution or the complainant.”
(E) A Constitution Bench of this Court in Sarah Mathew v. Institute of
Cardio Vascular Diseases etc. and others3 framed the questions for its
consideration as under:
“3. No specific questions have been referred to us. But, in our
opinion, the following questions arise for our consideration:
13 (2014) 2 SCC 104.
19
3.1. (i) Whether for the purposes of computing the period of
limitation under Section 468 CrPC the relevant date is the date of
filing of the complaint or the date of institution of the prosecution
or whether the relevant date is the date on which a Magistrate takes
cognizance of the offence?
3.2. (ii) Which of the two cases i.e. Krishna Pillai5 or Bharat
Kale7 (which is followed in Japani Sahoo10, lays down the correct
law?”
After noticing the 42nd Law Commission’s Report and the relevant
provisions and scheme of Chapter XXXVI of the Code, the Constitution
Bench stated:
“37. We are inclined to take this view also because there has to be
some amount of certainty or definiteness in matters of limitation
relating to criminal offences. If, as stated by this Court, taking
cognizance is application of mind by the Magistrate to the
suspected offence, the subjective element comes in. Whether a
Magistrate has taken cognizance or not will depend on facts and
circumstances of each case. A diligent complainant or the
prosecuting agency which promptly files the complaint or initiates
prosecution would be severely prejudiced if it is held that the
relevant point for computing limitation would be the date on which
the Magistrate takes cognizance. The complainant or the
prosecuting agency would be entirely left at the mercy of the
Magistrate, who may take cognizance after the limitation period
because of several reasons; systemic or otherwise. It cannot be the
intention of the legislature to throw a diligent complainant out of
the court in this manner. Besides, it must be noted that the
complainant approaches the court for redressal of his grievance. He
wants action to be taken against the perpetrators of crime. The
courts functioning under the criminal justice system are created for
this purpose. It would be unreasonable to take a view that delay
caused by the court in taking cognizance of a case would deny
justice to a diligent complainant. Such an interpretation of Section
468 CrPC would be unsustainable and would render it
unconstitutional. It is well settled that a court of law would
interpret a provision which would help sustaining the validity of the
law by applying the doctrine of reasonable construction rather than
applying a doctrine which would make the provision unsustainable
and ultra vires the Constitution. (U.P. Power Corpn.
Ltd. v. Ayodhya Prasad Mishra14)
14 (2008) 10 SCC 139 : (2008) 2 SCC (L&S) 1000
20
*** *** ***
41. There can be no dispute about the rules of interpretation cited
by the counsel. It is true that there is no ambiguity in the relevant
provisions. But, it must be borne in mind that the word
“cognizance” has not been defined in CrPC. This Court had to
therefore interpret this word. We have adverted to that
interpretation. In fact, we have proceeded to answer this reference
on the basis of that interpretation and keeping in mind that special
connotation acquired by the word “cognizance”. Once that
interpretation is accepted, Chapter XXXVI along with the heading
has to be understood in that light. The rule of purposive
construction can be applied in such a situation. A purposive
construction of an enactment is one which gives effect to the
legislative purpose by following the literal meaning of the
enactment where that meaning is in accordance with the legislative
purpose or by applying a strained meaning where the literal
meaning is not in accordance with the legislative purpose
(see Francis Bennion on Statutory Interpretation). After noticing
this definition given by Francis Bennion in National Insurance Co.
Ltd. v. Laxmi Narain Dhut15 , this Court noted that : (SCC p. 718,
para 35)
“35. More often than not, literal interpretation of a
statute or a provision of a statute results in absurdity.
Therefore, while interpreting statutory provisions, the
courts should keep in mind the objectives or purpose for
which statute has been enacted.”
In the light of this observation, we are of the opinion that if in the
instant case literal interpretation appears to be in any way in
conflict with the legislative intent or is leading to absurdity,
purposive interpretation will have to be adopted.
*** *** ***
49. It is true that penal statutes must be strictly construed. There
are, however, cases where this Court has having regard to the
nature of the crimes involved, refused to adopt any narrow and
pedantic, literal and lexical construction of penal statutes.
(See Murlidhar Meghraj Loya v. State of Maharashtra16 and Kisan
Trimbak Kothula v. State of Maharashtra.17 In this case, looking to
the legislative intent, we have harmoniously construed the
provisions of Chapter XXXVI so as to strike a balance between the
right of the complainant and the right of the accused. Besides, we
must bear in mind that Chapter XXXVI is part of the Criminal
Procedure Code, which is a procedural law and it is well settled
15 (2007) 3 SCC 700 : (2007) 2 SCC (Cri) 142
16 (1976) 3 SCC 684 : 1976 SCC (Cri) 493
17 (1977) 1 SCC 300 : 1977 SCC (Cri) 97
that procedural laws must be liberally construed to serve as
handmaid of justice and not as its mistress. (See Sardar Amarjit
Singh Kalra (D) by Lrs. & Ors. v. Pramod Gupta (D) by Lrs. &
Ors. 18, N. Balaji v. Virendra Singh19 and Kailash v. Nankhu &
Ors.20”
Finally, it was concluded in paragraphs 50 and 51 as under:
“50. Having considered the questions which arise in this reference
in the light of legislative intent, authoritative pronouncements of
this Court and established legal principles, we are of the opinion
that Krishna Pillai5 will have to be restricted to its own facts and it
is not the authority for deciding the question as to what is the
relevant date for the purpose of computing the period of limitation
under Section 468 CrPC, primarily because in that case, this Court
was dealing with Section 9 of the Child Marriage Restraint Act,
1929 which is a special Act. It specifically stated that no court shall
take cognizance of any offence under the said Act after the expiry
of one year from the date on which offence is alleged to have been
committed. There is no reference either to Section 468 or Section
473 CrPC in that judgment. It does not refer to Sections 4 and 5
CrPC which carve out exceptions for the special Acts. This Court
has not adverted to diverse aspects including the aspect that
inaction on the part of the court in taking cognizance within
limitation, though the complaint is filed within time may work
great injustice on the complainant. Moreover, reliance placed
on Antulay ‘1984’ case6, in our opinion, was not apt. In Antulay
‘1984’ case6 this Court was dealing inter alia with the contention
that a private complaint is not maintainable in the Court of the
Special Judge set up under Section 6 of the Criminal Law
(Amendment) Act, 1952 (“the 1952 Act”). It was urged that the
object underlying the 1952 Act was to provide for a more speedy
trial of offences of corruption by a public servant. It was argued
that if it is assumed that a private complaint is maintainable then
before taking cognizance, a Special Judge will have to examine the
complainant and all the witnesses as per Section 200 CrPC. He will
have to postpone issue of process against the accused and either
inquire into the case himself or direct an investigation to be made
by a police officer and in cases under the Prevention of Corruption
Act, 1947 by police officers of designated rank for the purpose of
deciding whether or not there is sufficient ground for proceeding. It
was submitted that this would thwart the object of the 1952 Act
18 (2003) 3 SCC 272
19 (2004) 8 SCC 312
20 (2005) 4 SCC 480]
which is to provide for a speedy trial. This contention was rejected
by this Court holding that it is not a condition precedent to the issue
of process that the court of necessity must hold the inquiry as
envisaged by Section 202 CrPC or direct investigation as therein
contemplated. That is matter of discretion of the court. Thus, the
questions which arise in this reference were not involved
in Antulay ‘1984’ case6: since there, this Court was not dealing with
the question of bar of limitation reflected in Section 468 CrPC at
all, in our opinion, the said judgment could not have been usefully
referred to in Krishna Pillai5 while construing provisions of
Chapter XXXVI CrPC. For all these reasons, we are unable to
endorse the view taken in Krishna Pillai5.
51. In view of the above, we hold that for the purpose of computing
the period of limitation under Section 468 CrPC the relevant date is
the date of filing of the complaint or the date of institution of
prosecution and not the date on which the Magistrate takes
cognizance. We further hold that Bharat Kale7 which is followed
in Japani Sahoo10, lays down the correct law. Krishna Pillai5 will
have to be restricted to its own facts and it is not the authority for
deciding the question as to what is the relevant date for the purpose
of computing the period of limitation under Section 468 CrPC.”
13. It is, thus, clear that though Section 468 of the Code mandates that
‘cognizance’ ought to be taken within the specified period from the
commission of offence, by invoking the principles of purposive construction,
this Court ruled that a complainant should not be put to prejudice, if for
reasons beyond the control of the prosecuting agency or the complainant, the
cognizance was taken after the period of limitation. It was observed by the
Constitution Bench that if the filing of the complaint or initiation of
proceedings was within the prescribed period from the date of commission
of an offence, the Court would be entitled to take cognizance even after the
prescribed period was over.
23
14. The dictum in Sarah Mathew3 has to be understood in light of the
situations which were dealt with by the Constitution Bench. If a complaint
was filed within the period prescribed under Section 468 of the Code from
the commission of the offence but the cognizance was taken after the expiry
of such period, the terminal point for the prescribed period for the purposes
of Section 468, was shifted from the date of taking cognizance to the filing
of the complaint or initiation of proceedings so that a complaint ought not to
be discarded for reasons beyond the control of the complainant or the
prosecution.
15. Let us now consider the applicability of these principles to cases
under the Act. The provisions of the Act contemplate filing of an application
under Section 12 to initiate the proceedings before the concerned Magistrate.
After hearing both sides and after taking into account the material on record,
the Magistrate may pass an appropriate order under Section 12 of the Act. It
is only the breach of such order which constitutes an offence as is clear from
Section 31 of the Act. Thus, if there be any offence committed in terms of
the provisions of the Act, the limitation prescribed under Section 468 of the
Code will apply from the date of commission of such offence. By the time
an application is preferred under Section 12 of the Act, there is no offence
committed in terms of the provisions of the Act and as such there would
never be a starting point for limitation from the date of application under
Section 12 of the Act. Such a starting point for limitation would arise only
and only after there is a breach of an order passed under Section 12 of the
Act.
16. We may now deal with the case on which reliance was placed by the High Court.
Inderjit Singh Grewal v. State of Punjab and another21 was a case
where the marriage between the parties was dissolved by judgment and
decree dated 20.03.2008. Thereafter, the wife preferred an application under
the provisions of the Act on 4.5.2009 alleging that the decree of divorce was
sham and that even after the divorce the parties were living together as
husband and wife; and that she was thereafter forced to leave the
matrimonial home. It was, in these circumstances, that an application under
Section 482 of the Code was filed by the husband seeking quashing of the
proceedings under the Act. It was observed that a suit filed by the wife to
declare the judgment and decree of divorce as a nullity was still pending
consideration before the competent court. The effect of the proceedings
culminating in decree for divorce was considered by this Court as under:-
21 (2011) 12 SCC 588
25
“16. The question does arise as to whether the reliefs sought in the
complaint can be granted by the criminal court so long as the
judgment and decree of the civil court dated 20-3-2008 subsists.
Respondent 2 has prayed as under:
“It is therefore prayed that Respondent 1 be directed to
hand over the custody of the minor child Gurarjit
Singh Grewal forthwith. It is also prayed that
Respondent 1 be directed to pay to her a sum of Rs
15,000 per month by way of rent of the premises to be
hired by her at Ludhiana for her residence. It is also
prayed that all the respondents be directed to restore to
her all the dowry articles as detailed in Annexures A to
C or in the alternative they be directed to pay to her a
sum of Rs.22,95,000 as the price of the dowry articles.
Affidavit attached.”
Thus, the reliefs sought have been threefold: (a) custody of the
minor son; (b) the right of residence; and (c) restoration of dowry
articles.
17. It is a settled legal proposition that where a person gets an
order/office by making misrepresentation or playing fraud upon the
competent authority, such order cannot be sustained in the eye of
the law as fraud unravels everything. “Equity is always known to
defend the law from crafty evasions and new subtleties invented to
evade law.” It is trite that “fraud and justice never dwell together”
(fraus et jus nunquam cohabitant). Fraud is an act of deliberate
deception with a design to secure something, which is otherwise
not due. Fraud and deception are synonymous. “Fraud is anathema
to all equitable principles and any affair tainted with fraud cannot
be perpetuated or saved by the application of any equitable
doctrine.” An act of fraud on court is always viewed seriously.
(Vide Meghmala v. G. Narasimha Reddy22 )
18. However, the question does arise as to whether it is permissible
for a party to treat the judgment and order as null and void without
getting it set aside from the competent court. The issue is no more
res integra and stands settled by a catena of decisions of this Court.
For setting aside such an order, even if void, the party has to
approach the appropriate forum. [Vide State of Kerala v. M.K.
22 (2010) 8 SCC 383
26
Kunhikannan Nambiar Manjeri Manikoth23 and Tayabbhai M.
Bagasarwalla v. Hind Rubber Industries (P) Ltd.24]”
The plea based on the issue of limitation was then considered in
paragraphs 32 and 33 and it was observed: -
“32. Submissions made by Shri Ranjit Kumar on the issue of
limitation, in view of the provisions of Section 468 CrPC, that the
complaint could be filed only within a period of one year from the
date of the incident seem to be preponderous in view of the
provisions of Sections 28 and 32 of the 2005 Act read with Rule
15(6) of the Protection of Women from Domestic Violence Rules,
2006 which make the provisions of CrPC applicable and stand
fortified by the judgments of this Court in Japani Sahoo v. Chandra
Sekhar Mohanty10 and NOIDA Entrepreneurs Assn. v. NOIDA25.
33. In view of the above, we are of the considered opinion that
permitting the Magistrate to proceed further with the complaint
under the provisions of the 2005 Act is not compatible and in
consonance with the decree of divorce which still subsists and thus,
the process amounts to abuse of the process of the court.
Undoubtedly, for quashing a complaint, the court has to take its
contents on its face value and in case the same discloses an offence,
the court generally does not interfere with the same. However, in
the backdrop of the factual matrix of this case, permitting the court
to proceed with the complaint would be travesty of justice. Thus,
interest of justice warrants quashing of the same.”
17. Another case on which reliance was placed during the hearing was
Krishna Bhattacharjee v. Sarathi Choudhary26. In that case, a decree for
judicial separation was passed by a competent court. Thereafter, an
application under Section 12 of the Act was preferred by the wife seeking
23 (1996) 1 SCC 435
24 (1997) 3 SCC 443
25 (2011) 6 SCC 508
26 (2016) 2 SCC 705
27
return of Stridhan articles and allied reliefs. A plea was taken by the
husband that the proceedings under the Act were barred by time. The
Magistrate held that as a result of decree for judicial separation, the parties
ceased to be in domestic relationship and as such, no relief could be granted.
The appeal arising therefrom was dismissed by the lower appellate court and
finally revision preferred by the wife was also dismissed by the High Court.
In light of these facts, the issue of limitation was considered by this Court as
under: -
“32. Regard being had to the aforesaid statement of law, we have
to see whether retention of stridhan by the husband or any other
family members is a continuing offence or not. There can be no
dispute that wife can file a suit for realization of the stridhan but it
does not debar her to lodge a criminal complaint for criminal
breach of trust. We must state that was the situation before the
2005 Act came into force. In the 2005 Act, the definition of
“aggrieved person” clearly postulates about the status of any
woman who has been subjected to domestic violence as defined
under Section 3 of the said Act. “Economic abuse” as it has been
defined in Section 3(iv) of the said Act has a large canvass. Section
12, relevant portion of which has been reproduced hereinbefore,
provides for procedure for obtaining orders of reliefs. It has been
held in Inderjit Singh Grewal21 that Section 468 of the Code of
Criminal Procedure applies to the said case under the 2005 Act as
envisaged under Sections 28 and 32 of the said Act read with Rule
15(6) of the Protection of Women from Domestic Violence Rules,
2006. We need not advert to the same as we are of the considered
opinion that as long as the status of the aggrieved person remains
and stridhan remains in the custody of the husband, the wife can
always put forth her claim under Section 12 of the 2005 Act. We
are disposed to think so as the status between the parties is not
severed because of the decree of dissolution of marriage. The
concept of “continuing offence” gets attracted from the date of
deprivation of stridhan, for neither the husband nor any other
family members can have any right over the stridhan and they
remain the custodians. For the purpose of the 2005 Act, she can
28
submit an application to the Protection Officer for one or more of
the reliefs under the 2005 Act.
33. In the present case, the wife had submitted the application on
22-5-2010 and the said authority had forwarded the same on 1-6-
2010. In the application, the wife had mentioned that the husband
had stopped payment of monthly maintenance from January 2010
and, therefore, she had been compelled to file the application for
stridhan. Regard being had to the said concept of “continuing
offence” and the demands made, we are disposed to think that the
application was not barred by limitation and the courts below as
well as the High Court had fallen into a grave error by dismissing
the application being barred by limitation.”
18. Inderjit Singh Grewal21 was decided before the decision of this Court
in Sara Mathew3. Rather than the issue of limitation, what really weighed
with this Court in Inderjit Singh Grewal21 was the fact that the domestic
violence was alleged after the decree for divorce, when any relationship
between the parties had ceased to exist. It is true that the plea based on
Section 468 of the Code was noted in paragraph 32 of said decision but the
effect and interplay of Sections 12 and 31 of the Act was not noticed. In
Krishna Bhattarcharjee27 as is evident from paragraph 33 of the said
decision, the plea of limitation was rejected as the offence was found to be
continuing one and as such there was no terminal point from which date the
limitation could be reckoned.
Thus, none of these decisions is material for the purposes of the
instant matter.
29
19. The special features with regard to an application under Section 12 of the Act were noticed by a Single Judge of the High Court in Dr. P. Padmanathan & Ors.2 as under:
“19. In the first instance, it is, therefore, necessary to examine the
areas where the D.V. Act or the D.V. Rules have specifically set out
the procedure thereby excluding the operation of Cr.P.C. as
contemplated under Section 28(1) of the Act. This takes us to the
D.V. Rules. At the outset, it may be noticed that a “complaint” as
contemplated under the D.V. Act and the D.V. Rules is not the same
as a “complaint” under Cr.P.C. A complaint under Rule 2(b) of the
D.V. Rules is defined as an allegation made orally or in writing by
any person to a Protection Officer. On the other hand, a complaint,
under Section 2(d) of the Cr.P.C. is any allegation made orally or in
writing to a Magistrate, with a view to his taking action under the
Code, that some person, whether known or unknown has
committed an offence. However, the Magistrate dealing with an
application under Section 12 of the Act is not called upon to take
action for the commission of an offence. Hence, what is
contemplated is not a complaint but an application to a Magistrate
as set out in Rule 6(1) of the D.V. Rules. A complaint under the
D.V. Rules is made only to a Protection Officer as contemplated
under Rule 4(1) of the D.V. Rules.
20. Rule 6(1) sets out that an application under Section 12 of the
Act shall be as per Form II appended to the Act. Thus, an
application under Section 12 not being a complaint as defined
under Section 2(d) of the Cr.P.C, the procedure for cognizance set
out under Section 190(1)(a) of the Code followed by the procedure
set out in Chapter XV of the Code for taking cognizance will have
no application to a proceeding under the D.V. Act. To reiterate,
Section 190(1)(a) of the Code and the procedure set out in the
subsequent Chapter XV of the Code will apply only in cases of
complaints, under Section 2(d) of Cr.P.C, given to a Magistrate and
not to an application under Section 12 of the Act.”
20. It is thus clear that the High Court wrongly equated filing of an
application under Section 12 of the Act to lodging of a complaint or
initiation of prosecution. In our considered view, the High Court was in error in observing that the application under Section 12 of the Act ought to have been filed within a period of one year of the alleged acts of domestic violence.
21. It is, however, true that as noted by the Protection Officer in his
Domestic Inspection Report dated 2.08.2018, there appears to be a period of
almost 10 years after 16.09.2008, when nothing was alleged by the appellant
against the husband. But that is a matter which will certainly be considered
by the Magistrate after response is received from the husband and the rival
contentions are considered. That is an exercise which has to be undertaken
by the Magistrate after considering all the factual aspects presented before
him, including whether the allegations constitute a continuing wrong.
22. Lastly, we deal with the submission based on the decision in Adalat
Prasad4. The ratio in that case applies when a Magistrate takes cognizance
of an offence and issues process, in which event instead of going back to the
Magistrate, the remedy lies in filing petition under Section 482 of the Code.
The scope of notice under Section 12 of the Act is to call for a response from
the respondent in terms of the Statute so that after considering rival
submissions, appropriate order can be issued. Thus, the matter stands on a different footing and the dictum in Adalat Prasad4 would not get attracted at a stage when a notice is issued under Section 12 of the Act.
23. We, therefore, allow this appeal and set aside the view taken by the
High Court. Crl. O.P. No.28924 of 2018 is accordingly, dismissed. The
husband shall file his response before the Magistrate within two weeks and
the matter shall thereafter be considered by the Magistrate in terms of the
provisions of the Act.
24. We must clarify that we have considered the instant matter from the
perspective whether the application preferred under Section 12 of the Act
was rightly considered by the High Court for reckoning the period of
limitation. We have not and shall not be taken to have expressed any view on
merits of the matter which shall be gone into independently at every stage.
25. The appeal is, thus, allowed. No order as to costs.
………………………………..J.
[Uday Umesh Lalit]
………………………………..J.
[Pamidighantam Sri Narasimha]
New Delhi;
April 13, 2022.
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